Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-04-16
COURT OF APPEALS.
SYNOPSIS of Decisions Rendered at the
Present Austin Sitting.

huIG duu OaLu a. w IIISOH, JUICES; JanSS
L. White, clerk; W. L. Davidson, assis-
tant attorney-general: NJ. NJ. Hornsby,
bailif.
W. B. Howard vs.. State of Texas, ap-
peal from Hunt county. Opinion by
White, P.J The appeal is from judg-
ment of conviction for assault with in
tent to murder. The following are the
principal points taken from the many bills
of exception taken at the trial:
l. The court refused to charge the Jury
the law OF manslaughter, as applicable to
the facts in the case, which would have
reduced the crime to aggravated Offense.
2. The court refused to charge upon
self-defeuse.
3. The court excluded evidence of ante
cedent acts, threats, etc, of the Injured
party toward appellant, which would have
tended 10 rebut the presumption of
malice.
Manslaughter was only practicable upon
two phases, t0-wit:
l. Insulting words toward mother Of
appellant.
,. Sudden passion, either anger or ter
rOr, provoked by the acts and conduct of
the injured party al the time OF the shoot
ing rendered appellant incapable of cool
reflection.
The testimony as to the insulting words
was properly ruled out by the court, be
cause it does not appear that appellant
did the shooting at the first meeting after
heating of the insulting words.
The main question in the case
is as to whether the court
did right in excluding all evidence of ar
tecedent acts, threats, etc, because there
was no predicate laid to show that
the injured party did some overt act at
the time Of shooting as evidencing his in
teEtion of carrying Out such previous
threats. Is it & rule that an overt act is
necessary to establish g predicate in case
Of threats Or are they admissible per Sc?
Oar statute provides that evidence of
threats is admissible, but not as iustifca-
ton without an overt act. The admis-
sion Of evidence of threats, without overt
acts evinCing an intent to carry out the
threat, may not justify, yet still it may
mitigate the offense. We are not aware
OF any decision OF the higher courts re-
fusing to admit evidence of threats sim
ply because no predicate had been laid,
but On the contrary there are mauY deCi-
sions on the other side, and We are Of the
opinion that threats are admissible per Sc
as Independent in cases Of this character.
In the present case the evidence was ad-
missable and the court erred in excluding
it, The Injured party stopped and looked
into appellants window IN 8 significant
manner and the appellant came ont with
MS gun, and on some one calling OUI,
Don't do that, Howard" the injured
party (RusselD ran his hand under his
coat, and the appellant (Howard) fired,
and 1t seems from the evidence there was
clearly q sufficient overt act on the
part Of the Injured party, to terrCriZa the
appellant as to firing Z shot while Russell
was retreatiHg, it mas been decided that
the passion can be 4 continuing one. Ia
the present case manslaughter should
have been charged, aud past conduct,
threats, etc, should have been considered
by the jury, and the court erred in decid-
ing otherwise and the Judgment is re-
verSed and the cause remanded for q new
trial.
Robert Giles vs.. State of Texas, from
Henderson county; opinion by White, p
j. This is an appeal from P judgment of
conviction of murder in the first degree,
the punishment being assessed at death.
The case is novel one. When appellant
before the court would admit the plea it
was made to appear that appellant was
sane and had not been persuaded to so
plead by threats or hope of pardon.
After his trial and conviction of murder
in the first degree, which was on Febru-
airy 81, 1887, on motion for 3 new trial,
motion was sustained, and case set for
trial February "a, 1887, when appellant
nj V
statute mad been conformed to, and he
was found guilty as in first trial.
Appellants counsel made g motion for g
new trial on two grounds, to-wlt: |. The
evidence was not sufficient to show that
appellant was guilty of murder >. The
court erred in the charge 10 the Jury that
"yOur duty is to determine of Wnat
degree of murder he is guilty and assess
the proper penalty" it being also the
duty of the Jury to find If tn. evidence
showed the defendant to be guilty of the
Offense outside of his plea Of guilty. As
to the first ground the evidence was suffi-
cient; as to the second ground the charge
of the court fully and fairly submitted
the law. Said judgment is, therefore, in
all things, affirmed.
Dugg Clark vs.. State Of Texas, from
Cooke county. Opinion by Wilson, j.
This is an information for defacing 8
public building. 1t was not error to
override defendants motion to transfer
the cause to the District court, because
the building defaCed was a schooIhouse,
| title 10 which was vested in the county
Judge. The court erred in admitting the
evidence that the appellant had been
! found guilty in former trial as the evil
denCe WAS not legitimate under cur
statutes, as former conviction shall be
regarded as no presumption of guilt, and
shall not be alluded to in argument.
! The counsel for the state
stated that seven good
men had assisted in employing counsel TO
prosecute the case for which he should
have been reprimanded by the court, and
1.-THE jury told not to consider the statement.
The court should also have condemned the
states attorney for abiding to evidence
which was oVerruled. Because OF the
above material errors the Judgment is re.
Versed and the cause remanded.
William Kolberschlsg VS.. State OF
Texas, from Montague county. Opinion
by Hurt, J. This was a conviction for